The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 62-4.161 of the Department of Environmental Protection (“DEP”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties DEP is the state agency granted regulatory and enforcement powers in chapter 403, Florida Statutes, to control air and water pollution. Associated Industries of Florida, Inc., is a non-profit corporation. It is the largest association of business, trade, commercial, and professional organizations, partnerships, and proprietorships in Florida. Florida Farm Bureau Federation is a not-for-profit agricultural organization. It is the State’s largest general- interest agricultural association with about 145,000 members. Florida Retail Federation, Inc., is a non-profit corporation with over 4,000 members, which are retail companies operating in Florida. The Florida Petroleum Marketers and Convenience Store Association is a division of the Federation. Florida Trucking Association, Inc., is a non-profit corporation whose members include about 26,000 trucking companies. National Federation of Independent Business, Inc., is the Nation’s leading small business association. It has about 10,500 members operating in Florida. A principal purpose of each Petitioner is to represent the interests of its members before elected and appointed officials of state government. For each Petitioner, a substantial number of its members are owners and operators of installations or otherwise engaged in activities capable of having “reportable releases” as that term is defined in the proposed rule. The Proposed Rule Proposed rule 62-4.161, entitled “Public Notice of Pollution,” is lengthy and does not need to be set out here in its entirety to understand the objections raised by Petitioners or the defenses advanced by DEP. In summary, the proposed rule requires a person who has a reportable release of a regulated substance to inform DEP, the general public (via television and newspaper), and the local government within 24 hours after the release occurs. Within 48 hours of the release, additional information must be provided to the same entities. If the release goes beyond the property of the owner/operator, the adjacent property owner must be notified within 24 hours, as well as DEP and the local government. The proposed rule describes the information that must be included in the notices and the penalty for non-compliance with the rule’s requirements. Rulemaking Authority The proposed rule identifies seven statutes as authority for the rule. Section 377.22(2). This provision grants authority to DEP to adopt rules to implement and enforce the provisions of chapter 377, which regulates oil and gas resources. Section 403.061(7). This provision grants authority to DEP to adopt rules to implement the provisions of the Florida Air and Water Pollution Control Act, which is a part of chapter 403. Section 403.061(8). This provision grants authority to DEP to issue orders “necessary to effectuate the control of air and water pollution.” Section 403.061(28). This provision authorizes DEP to “Perform any other act necessary to control and prohibit air and water pollution.” Section 403.062. This provision grants DEP general control over surface and ground waters under the jurisdiction of the state insofar as their pollution may affect public health or the public interest. Section 403.855(1). This provision authorizes DEP to adopt emergency rules to protect the public health when DEP has information that a contaminant may present an imminent hazard or substantial danger to public or private water supplies. Section 403.861(9). This provision authorizes DEP to adopt rules to implement the provisions of the Florida Safe Drinking Water Act, which is a part of chapter 403. Law Implemented The proposed rule identifies eight statutes as the law implemented by the rule. Two of these statutes, sections 403.62 and 403.861(9), have already been described above. The other six statutes are described below. Section 377.21. This provision, in pertinent part, authorizes DEP to collect data, make inspections, and “[p]rovide for the keeping of records and making of reports” related to oil, gas, and other petroleum products. Section 403.061(16). This provision requires DEP to encourage voluntary cooperation to achieve the purposes of the Florida Air and Water Pollution Control Act. Section 403.061(17). This provision requires DEP to encourage local governments to handle pollution problems on a cooperative basis. Section 403.061(18). This provision requires DEP to conduct investigations and research related to pollution and its causes, prevention, abatement, and control. Section 403.061(28). This provision empowers DEP to perform any act necessary to control and prohibit air and water pollution. 403.855(3). This provision authorizes DEP to establish a program designed to prevent contamination or to minimize the danger of contamination to potable water supplies. Within chapters 377 and 403, the only provisions that specifically address reporting of spills or contamination require that the report be made to DEP only. For example, section 377.371(2), Florida Statutes, requires that a spill or leak of oil, gas, other petroleum product, or waste material be reported to the Division of Resource Management within DEP. Upon review of the proposed rule by the staff of the Joint Administrative Procedures Committee (“JAPC”), DEP was asked why the proposed rule was not an unlawful modification or enlargement of section 377.371(2), which only requires notice to DEP in the event of a spill or leak. Section 376.30702, entitled “Contamination notification,” requires notice only to DEP for several scenarios where contamination is discovered: The Legislature finds and declares that when contamination is discovered by any person as a result of site rehabilitation activities [pursuant to statutes dealing with dry- cleaning, petroleum storage, brownfields, and other contamination], it is in the public’s best interest that potentially affected persons be notified of the existence of such contamination. Therefore, persons discovering such contamination shall notify the department . . . and the department shall be responsible for notifying the general public. § 376.30702(1), Fla. Stat. There are two other statutes that require notice to DEP for actions which are somewhat analogous to a release of pollution. Section 403.862(1)(b) provides that county health departments must notify DEP of potential violations of standards at any public water system. Section 403.93345(5) requires a vessel owner or operator to notify DEP within 24 hours if the vessel has struck or damaged a coral reef. For comparison, section 376.707(11) requires an applicant for a DEP solid waste facility permit to notify the local government and the general public by newspaper that it has applied for the permit. This statute shows the Legislature has required broader notice when it wanted. Lower Cost Regulatory Alternative DEP prepared a Statement of Estimated Regulatory Costs (“SERC”) for the proposed rule and published notice of its availability as required by section 120.541. In the SERC, it is estimated that the total increased regulatory costs are $182,000 per year. On October 19, 2016, 27 regulated entities, including Petitioners, submitted a Lower Cost Regulatory Alternative (“LCRA”) to DEP. Florida Electric Power Coordinating Group, Inc., also submitted a LCRA. Both LCRAs proposed that DEP be responsible for notice to the general public, local governments and adjacent property owners, which would result in lower costs to the regulated community. In the SERC made available to the public in November 2016, DEP stated that it rejected the LCRA because the party who caused an unauthorized release of contaminants is the more appropriate party to incur the reporting costs imposed by the proposed rule, and (2) the party who releases contaminants is in a better position to know details about the substances that were released which must be included in the report.
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
Findings Of Fact Petitioner and DER have stipulated to the following facts: Petitioner is the owner and developer of real property in Franklin County, Florida. 2. DER has adopted Rules 17-4.28(2), 17-4.28(8)(a) and 17-4.242(1)(a)2, Florida Administrative Code, which: require a permit for dredge and fill activities under Chapter 403, Florida Statutes; prohibit permitting of dredge and fill activities in Class II waters approved for shellfish harvesting by the Department of Health and Rehabilitative Services (now the Department of Natural Resources); and require an affirmative public interest showing of an applicant for a license to construct a stationary installation in "Outstanding Florida Waters." These rules substantially affect Petitioner for the following reasons: Petitioner applied to DER for a development permit to dredge a navigation channel from his private canal into Alligator Harbor in Franklin County. The navigation channel was proposed to be 40 feet wide and 400 feet long, and was to be dredged to a depth of minus four (-4) feet mean low water, which would entail removing approximately 3,890 cubic yards of material. On May 28, 1980, DER issued an intent to deny the requested permit in file No. 19- 28442-1E. On June 11, 1980, Petitioner filed a petition for administrative hearing on DER's intent to deny his permit application. On June 12, 1980, DER informed Petitioner it would take no action on its Intent to Deny letter of May 28, 1980, for 60 days and allow Petitioner to submit additional information on the merits of his permit application during that period. DER took no further action regarding the Intent to Deny or Petitioner's permit application, and, after Petitioner's request, on March 5, 1981, DER forwarded the petition for administrative hearing filed with it on June 11, 1980, to the Division of Administrative Hearings. DER's Intent to Deny Petitioner's permit application stated DER had permitting jurisdiction under Chapter 403, Florida Statutes, and under Rule 17-4.28(2), Florida Administrative Code, because the proposed dredging would be in waters of the state within the definition contained in Rule 17-4.28(2), Florida Administrative Code. DER's Intent to Deny Petitioner's application asserted that Petitioner's proposed project was located in Class II waters approved for shellfish harvesting and that dredging in such areas was prohibited by Rule 17- 4.28(8)(a), Florida Administrative Code. DER's Intent to Deny Petitioner's application stated that Petitioner had not "affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest pursuant to Section 17-4.242(2). . . . The parties have agreed that the reference in the aforementioned quote should have been to Section 17-4.242(1)(a)2. Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
The Issue The issues in this case are whether the Respondent, Robert Dugger, committed the violations alleged in an Amended Administrative Complaint, DPBR Case Number 2002-007094, filed by the Petitioner Department of Business and Professional Regulation on April 11, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with regulating the practice of community association management pursuant to Chapters 455 and 468, Florida Statutes. (Stipulated Fact). Robert Dugger, is and was at the times material to this proceeding a licensed Florida Community Association Manager (hereinafter referred to as a “CAM”), having been issued license number CAM 1148. (Stipulated Fact). At the times material to this proceeding, Mr. Dugger’s address of record was 7401 Beach View Drive, North Bay Village, Florida 33141. Miramar Gardens. At the times material to this proceeding, Mr. Dugger was employed by Timberlake Group, Inc. (hereinafter referred to as “Timberlake”). In his capacity with Timberlake, Mr. Dugger served as the CAM for 30 homeowners’ associations. In particular, Mr. Dugger served as the CAM for Miramar Gardens Townhouse Homeowners’ Association, Inc. (hereinafter referred to as the “Association”). (Stipulated Fact). The Association is made up of approximately 350 homeowner members. The Association was initially created by the Miramar Gardens Townhouse Homeowners Association, Inc., Declaration of Covenants, Conditions and Restrictions adopted on or about December 16, 1975. By-Laws for the Association were also adopted on December 16, 1975. Article X of the By-Laws provides the following homeowners’ rights concerning the books and records of the Association: The books, records and papers of the Association shall at all times, during reasonable business hours, be subject to inspection by any Member. The Declaration, the Articles and these By-Laws shall be available for inspection by any Member at the principal office of the Association, where copies may be purchased at reasonable cost. Prior to 2001, the Association, along with Vista Verde Townhome Homeowners Association (hereinafter referred to as “Vista Verde”), an adjacent community association, had been placed in receivership and was managed by a civilian board. These events came about due to the dismal state the two communities were in. Crime was rampant, there were no street signs or lights, common areas and alleys were unkempt, there were abandoned vehicles, and the associations for both areas were essentially non-existent. Miami-Dade County had taken over ownership of many homes in the community by foreclosure. Mr. Dugger became involved early with the reorganization and revitalization of the Association and Vista Verde. In 1997, Mr. Dugger was appointed by the receiver as the CAM for the Association and Vista Verde. At the end of 2000, the Association was ready to govern itself. Toward that end, on or about December 21, 2000, the Association and Timberlake, entered into a Management Agreement (hereinafter referred to as the “Management Agreement”). Pursuant to the Management Agreement, Timberlake was designated as the “Exclusive Managing Agent” for the Association commencing January 1, 2001. Among the duties assumed by Timberlake, are the following: 2) MAINTENANCE OF ASSOCIATION FILES: The Manager will collect, organize and maintain in the office of the Manager, all Association information, including but not limited to the Articles of Incorporation, By-Laws, Declaration of, [sic] Covenants, Conditions and Restrictions, site plans, owner lists, correspondence, rules and regulations, blue prints, specifications, corporate minutes, all maintenance and service contracts in effect and the necessary administrative financial information related to the Association. 8) ASSISTANCE TO THE BOARD OF DIRECTORS: The Manager will provide administrative support services to the Board of Directors, to include notifying Directors of Board meetings, circulating minutes of the preceding meeting, as prepared by the Secretary . . . . Timberlake has continued to provide the services of Mr. Dugger as CAM since 2001. During his tenure, street signs and lights have been installed, the common areas have been cleared, and the community has greatly improved. Proposed findings of fact 14 through 19 of Mr. Dugger’s Proposed Recommended Order generally describe Mr. Dugger’s efforts as CAM, the improvement of the community, and Mr. Dugger’s reputation as CAM. Count I: Criminal Violations. During 2003, Mr. Dugger served as a city commissioner for the City of North Bay Village, Florida (hereinafter referred to as the “Village”). On or about December 12, 2003, Mr. Dugger was charged with eight criminal violations in an Information issued in case number F03-33076, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The alleged violations arose out of Mr. Dugger’s activities as a city commissioner for the Village. Two of the criminal charges, Counts 2 and 8, are of pertinence to this matter: (a) Count 2 alleges a violation of Section 2-11.1(d), Miami-Dade County Code, and Section 125.69, Florida Statutes; and (b) Count 8 alleges a violation of Section 2-11.1(i), Miami-Dade County Code, and Section 125.69, Florida Statutes. As to Count 2 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about April 08, 2003, in the County and State aforesaid, being a member of THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did vote on a matter presented to said COMMISSION, to wit: ITEM 7A, AN ORDINANCE AMENDING SECTION 152.029 OF THE NORTH BAY VILLAGE CODE OF ORDINANCES (FIRST READING), when said defendant would or might, directly or indirectly, profit or be enhanced by this action of said COMMISSION on said matter, in violation of Miami-Dade County Code s.2.11.1(d) and s. 125.69, Fla. Stat. . . . As to Count 8 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about July 01, 2003, in the County and State aforesaid, being a MUNICIAL OFFICAL to wit: MEMBER OF THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did fail to comply with the financial disclosure requirements of Chapter 112 (Part III) of the Florida Statutes by failing to DISCLOSE ALL LIABILITIES IN PART E. OF FORM 1 STATEMENT OF FINANCIAL INTERESTS FOR 2002, filed with the City Clerk of THE CITY OF NORTH BAY VILLAGE, in violation of Miami-Dade County Code s. 2-11.1(i) and s. 125.69, Fla. Stat. . . . Counts 2 and 8 were based upon the following allegations of the Complaint/Arrest Affidavit: Robert A. Dugger was elected Village Commissioner for the City of North Bay Village on November 19, 2002. On September 21, 2002, Mr. Robert Dugger filed his Statement of Financial Interest for the calendar year 2001, as required by Miami- Dade County ordinance. In Part E of the Statement of Financial Interest (this section is designated for Liabilities – major debts-and asks for the name and address of creditor), Mr. Dugger marked N/A in this section. Commissioner Robert Dugger has substantial indebtedness to Al Coletta that was incurred when Al Coletta assumed the mortgage on one of Dugger’s properties and paid off the mortgage on another. Rachael Dugger admitted these debts under oath during her sworn statement. Commissioner Dugger failed to report these debts on his Statement of Financial Interest. Additionally, on March 15, 2001, a Summary Final Judgement of Foreclosure was ordered and adjudged on behalf International Financial Bank, against Tomin Incorporated, and Robert Dugger and Rachael Dugger personally, in the amount of $1,154,427.50. Following the Judgement on March 15, 2001, title of the property in question was acquire by International Finance Bank on Mary [sic] 2, 2001 and sold to a third party on June 1, 2001. The sale amount of the property was $750,000. A short fall of $404,427.50 remained after the sale and is still unpaid. Commissioner Dugger also failed to report this debt on his Statement of Financial Interest for the year 2001. . . . . Based on Commissioner Robert Dugger’s indebtedness to Al Coletta, he had a Conflict of Interest by voting on matters involving Al Coletta, that came before the North Bay Village Commission, each vote is a separate violation of the Miami-Dade Code, Section 2-11.1(d), a second [degree] misdemeanor. Commissioner Dugger violated the aforementioned Section 2-11.1(d), of the Miami-Dade Code on the following occasions: April 8, 2002, Item 7A, Page 7 of the Regular City Commission Meeting Minutes: A zoning amendment concerning property owned by Al Coletta. Page 14 of the Regular City Commission Meeting Minutes, Commissioner Dugger voted – yes, for approval of the ordinance. . . . . . . . . This action is in violation of Miami-Dade Code, Section 2-11.1(d), a second-degree misdemeanor . . . . Additionally, Commissioner Dugger is in violation of Section 2-11.1(i)(3), Miami- Dade County Conflict of Interest and Code of Ethics Ordinance. This Section required that candidates for County and municipal office must comply with the filing requirements, under Chapter 112, Florida State Statutes. This is a second-degree misdemeanor. . . . Section 2-11.1(d) of the Miami-Dade County Code, prohibits, in pertinent part, the following: Additionally, no person included in the term defined in subsection (b)(1) shall vote on or participate in any way in any matter presented to the Board of County Commissioners if said person has any of the following relationships with any of the persons or entities which would be or might be directly or indirectly affected by any action of the Board of County Commissioners: (i) officer, director, partner, of counsel, consultant, employee, fiduciary or beneficiary; or (ii) stockholder, bondholder, debtor, or creditor, if in any instance the transaction or matter would affect the person defined in subsection (b)(a) in a manner distinct from the manner in which it would affect the public generally. . . . Section 2-11.1(i)(3), of the Miami-Dade County Code, requires that candidates for County and municipal elective office meet the filing requirements of Chapter 112, Part III, Florida Statutes, “at the same time that candidate files qualifying papers.” Section 125.69, Florida Statutes, which provides procedures for the prosecution of county ordinances, states that they are to be prosecuted “in the same manner as misdemeanors are prosecuted.” On July 29, 2005, Mr. Dugger entered a plea of nolo contendere to Counts 2 and 8 of the Information, in case number F03-33076, both second-degree misdemeanor violations of Section 2-11.1 of the Miami-Dade County Code, and Section 125.69, Florida Statutes. (Stipulation of Fact). Mr. Dugger was adjudicated guilty of the violations alleged in Counts 2 and 8, and was ordered to pay $468.00 in fines and costs. Mr. Dugger was, therefore, adjudicated guilty of having voted on a matter in which he had a conflict of interest because the matter involved an individual to whom he was indebted; and of having failed to fully disclose liabilities on financial disclosure forms he was required to file pursuant to Florida law at the time he qualified to run for public office. Neither of the convictions directly involved Mr. Dugger’s practice as a CAM. Nor has the Department made such an argument. Instead, the Department presented expert testimony in support of its position that at least one of the convictions relates to Mr. Dugger’s ability to practice as a CAM. That testimony was convincing. All CAMs are involved in a fiduciary relationship with the associations they manage. It takes little expert testimony to support a finding that such a fiduciary relationship requires trust and integrity. CAMs must be trusted to handle association money, maintain the records of the association, and to deal on behalf of the association with potential and existing vendors. The association must be able to assume that a CAM will fully disclose any possible conflict the CAM may have with the association’s vendors. Mr. Dugger is responsible for billing, writing checks, paying insurance premiums, and maintaining a payment book for the Association. Paragraph 10 of the Management Agreement specifically provides that Timberlake “shall provide financial management services to the Association . . . .” Paragraph D(11)(a) authorizes Timberlake to “solicit and analyze bids for necessary insurance coverage.” Mr. Dugger has similar responsibilities with Vista Verde. Clearly, the Association must be able to trust that Mr. Dugger will carry out all these duties without having any conflict of interest. The Association must be able to assume that Mr. Dugger is acting in its best interest and not his own. In his defense as to the voting of interest conflict charge, Mr. Dugger, prior to the pertinent vote, made disclosure of his relationship with Mr. Coletta, the owner of the property which was the subject of the vote, to the attorney for the City of the Village. The Department failed to prove that Mr. Dugger did not make full disclosure. Mr. Dugger was advised that no conflict existed. Mr. Dugger cast his vote after receiving this advice. Subsequent to the vote, Mr. Dugger sought an opinion from the Miami-Dade County Commission on Ethics & Public Trust (hereinafter referred to as the “Commission”). The Commission, like the city attorney, opined in writing that no conflict of interest existed. Mr. Dugger entered his plea on the two charges in order to avoid the cost of litigation. The evidence, however, failed to prove why prosecutors agreed to accept a plea on only two of the eight counts. Count IV: Alleged Denial of Access to the Records of the Association. During 2003, Miryam Ruiz lived in Miramar Gardens Township and was a member of the Association. While she had been in arrears for 2001 and 2002, presumably in her association dues, she became current when she paid all outstanding dues in March 2003. On March 14, 2003, during normal business hours, Ms. Ruiz went to the office of Timberlake and requested that she be allowed to inspect certain records of the Association. She made her request verbally and in writing, leaving Petitioner’s Exhibit 13 with a Timberlake employee, apparently the receptionist, which listed the documents she wanted to inspect. She was told by the receptionist that she could not see the documents until she had made an appointment to do so. By letter dated Thursday, March 27, 2003, Ms. Ruiz was informed by Mr. Dugger’s wife, Rachel, that Ms. Ruiz could review the documents. She was also told that, “[i]f you would like, call us to make an appointment at your convenience.” On the morning of Monday, March 31, 2003, not having received Ms. Dugger’s March 27th letter, Ms. Ruiz sent a letter by facsimile to Timberlake stating that she would be at the office at 11:00 a.m. that morning to “pick up” the documents. When Ms. Ruiz arrived at the Timberlake office at 11:00 a.m. she was again told that she could not review the documents because she had no appointment. Ms. Ruiz left the office. Later that day, Ms. Ruiz sent a second facsimile letter addressed to Ms. Dugger. Ms. Ruiz ended the letter by informing Ms. Dugger that she would be at the office the next day, April 1, 2003, “for the inspection and copying of records at 9:30 a.m.” On April 1, 2003, Ms. Ruiz returned to the Timberlake office and was again told that the records were not available because no appointment had been made. Ms. Ruiz told the receptionist that she would return on Friday, April 4, 2003, at 9:30 a.m. to inspect the documents. In a letter to Ms. Dugger dated April 1, 2003, she stated that she was confirming the date and time. The evidence failed to prove whether the letter was received prior to April 4, 2003. When Ms. Ruiz arrived at the Timberlake office on April 4, 2003, she was again denied access to the documents and was told by Ms. Dugger that she had no appointment because the date and time suggested by Ms. Ruiz had not been confirmed by Timberlake. Ms. Ruiz left the office. The following day, April 5, 2003, Ms. Ruiz sent a letter by certified mail addressed to Mr. Dugger describing the events leading up to that moment and asking what it would take for her to be allowed to inspect the records. Mr. Dugger did not respond to this letter. In response to Ms. Ruiz’ April 5th letter, a letter dated April 22, 2003, was sent by Ms. Dugger. That letter indicated that the records would be available for inspection at 1:00 p.m. on Tuesday, May 6, 2003. The letter, which was postmarked May 2, 2003, ten days after the date of the letter, was not received by Ms. Ruiz prior to May 6th. Sometime during the month of May 2003, approximately two months after first attempting to review the records of the Association, Ms. Ruiz was finally allowed to inspect the records. Ms. Ruiz, without doubt, had the right to review the records of the Association she had requested. Pursuant to the Management Agreement, Mr. Dugger was required to collect, organize and maintain the records of the Association. The Management Agreement also required that Mr. Dugger was to assist the Board of Directors in their enforcement of the provisions of the “Association documents and rules and regulations ” Pursuant to Article X of the By-Laws of the Association, also quoted, supra, gives Association members the right to inspect and copy all Association documents The right to inspect association documents is not an unfettered one. In light of the duty and responsibility of a CAM to “maintain” records, it is not unreasonable for a CAM to set reasonable safeguards for a member’s review of those records. The Department did not produce evidence to refute the evidence presented by Mr. Dugger concerning the reasonableness of a CAM insisting on being present during the inspection of documents. The evidence also failed to prove that, given the fact that Mr. Dugger is the CAM for as many as 30 associations, he is not always available at his office to supervise a review of documents. The procedure followed with regard to reviews of the Association’s had been announced at an Association meeting. Members were told that anyone who wished to review records could contact the Timberlake office and make an appointment so Mr. Dugger could be present during an inspection, or that a copy of a document could be obtained upon payment for the document. It is clear that not all of the requests to Timberlake made by Ms. Ruiz were totally reasonable: (a) her first request on April 14, 2003, was without any notice; (b) her notice of March 31, 2003, gave only three hours notice; (c) her request for review on April 1, 2003, gave only one day notice; and (d) her request for review on April 4, 2003, gave only 3 days notice. While Ms. Ruiz eventually was allowed to review the documents, it took approximately two months after her initial request had been made. It is also clear that, although she did not always give reasonable notice for appointments she announced, Mr. Dugger (and his employees) could and should have done more to remedy the situation. Mr. Dugger first became aware of the request on March 14, 2003. It took 13 days to respond to that request. When Ms. Ruiz mailed a certified letter to Mr. Dugger dated April 5, 2003, it was not until May 2, almost a month later that a letter in response to that letter was post-marked. Based upon the foregoing, while neither Ms. Ruiz nor Mr. Dugger did much to ameliorate the situation, for at least part of the two months it took Ms. Ruiz to obtain access to the records of the Association, Mr. Dugger “denied” Ms. Ruiz access to the records of the Association. Count VI: Alleged Failure to Maintain Association Records. Pursuant to the Management Agreement entered into by Mr. Dugger with Miramar Gardens, at paragraph D(2), quoted, supra, Mr. Dugger agreed to collect, organize, and maintain all Association documents in the offices of Timberlake. Beginning in 2001, the minutes of meetings of the Association (held jointly with the meeting of Vista Verde) were usually taken by Claudette Brinson, president of the Association. On occasions, they were taken by others. Minutes taken by Ms. Brinson were written by hand and, after the meeting, were taken home with her. On some occasions, Ms. Brinson would ensure that her hand-written minutes were typed at various locations, including Mr. Dugger’s office. When typed at Mr. Dugger’s office, a copy was retained by Mr. Dugger and maintained with the records of the Association. Ms. Brinson’s testimony at hearing as to whether Mr. Dugger was given a copy of all minutes was in conflict. She initially testified that she had provided him with a copy of all minutes. When recalled by Mr. Dugger, she testified that on some occasions, when she did not have the minutes typed at Mr. Dugger’s office, while maintaining a copy at her home, she did not always provide him with a copy. While the latter testimony was more convincing and has been credited, the bottom line is that Mr. Dugger did not maintain a copy of the minutes from all meetings of the Association. At hearing, Mr. Dugger admitted that when he was served an Investigative Subpoena Duces Tecum issued by the Department on or about August 30, 2004, he realized that he did not have all the records the subpoena sought. In particular, Mr. Dugger did not have all of the documents requested in item number 5 of the subpoena: “[t]he minutes of all meetings of the board of directors and of the members of Miramar Gardens Townhouse Homeowners Association, Inc.” Mr. Dugger, therefore, contacted Ms. Brinson and asked her if she could provide a copy of the minutes of Association meetings that he did not have. She was not able to do so within the time Mr. Dugger had to respond to the subpoena. In a letter to the Department dated September 17, 2004, Mr. Dugger indicted the following with regard to the minutes requested in item number 5 of the subpoena: “The Minutes in our possession. Original minute meetings are in the hands of the Receiver, which were retained for his records. Some additional minutes are in the hands of Board members, which we will attempt to locate.” During calendar year 2002, minutes had been kept for meetings held during February, March, April, May, June, July, October, and December. During calendar year 2003, minutes had been kept for meetings held during January, February, March, May, June, July, August, September, October, and November. Finally, during calendar year 2004, minutes were kept for meetings held in January, February, March, April, July, August and September. Mr. Dugger at the time of responding to the Department’s subpoena did not have minutes for all of these meetings. For example, for 2002 he only had minutes for the meetings held in February, March, and June, and for 2003, he only had minutes for the meetings held in January and December. While Ms. Brinson adequately explained why she was not always able to provide a copy of meeting minutes to Mr. Dugger, Mr. Dugger did not provide an adequate explanation as to why he had not made sure that he obtained a copy of all minutes so that he could fulfill his obligation under the Management Agreement. No evidence was presented to suggest that Mr. Dugger’s failure to maintain all minutes was the result of bad faith or any intent on the part of Mr. Dugger to circumvent the rules of the Department or the requirements of the Management Agreement. Prior Discipline Against Mr. Dugger’s CAM License. Mr. Dugger’s CAM license was disciplined in DBPR Case Number 00-02226, pursuant to a Stipulation entered into by the Department and Mr. Dugger which was accepted by Final Order entered on April 9, 2001. The Stipulation provides that Mr. Dugger “neither admits or denies the . . . facts alleged in the Administrative Complaint ”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Mr. Dugger committed the violations described in this Recommended Order and imposing the following penalties: A stayed suspension of his license for six months, with the stay being lifted should Mr. Dugger be found to have committed any additional violation with regard to his CAM license within two years of the issuance of the final order in this case; An administrative fine in the amount of $1,500.00; Attendance at continuing education classes in records maintenance in an amount to be determined by the Department; and Payment of the costs of this matter. DONE AND ENTERED this 22nd day of January, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2009. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Philip F. Monte, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 E. Gary Early, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Was Petitioner denied a promotion on account of her gender?
Findings Of Fact Petitioner has been employed by the Department since 1991. Petitioner is a Field Biologist, Grade Level I. Among other things, she monitors surface water quality by collecting water in various environments and analyzing it in a laboratory. Early in 1994, there was a reorganization of her section and she began to work in the laboratory under the supervision of Jerry Owen. In the middle of 1994, Jim Wright became the supervisor of the laboratory section and, thus, Petitioner's supervisor. Subsequent to Mr. Wright becoming her supervisor, she experienced problems with regard to work assignments. Petitioner had been trained to operate the section's motorboats in 1991, and had operated them in the past. In January 1995, there were questions about Petitioner operating the boats. Subsequently, Environmental Specialist III Lee Banks told her she could no longer operate the boats. Under the supervision of Mr. Wright, Petitioner was assigned many secretarial duties. She was criticized for her lack of skill in filing. Mr. Wright suggested that she get some advice on how to properly file. She was instructed to learn to type and criticized when she failed to learn that skill. She was told that she couldn't travel to meetings and seminars until she completed a typing tutorial. During this period at least two informal documents were circulated in the section which were derogatory toward women. They could be considered offensive to someone with tender feelings, but they contained no vulgarity and were not outrageous. The origin of the documents was not demonstrated. Mr. Wright sometimes belittled the employees who were under his and he or others in the section sometimes told jokes, including "dumb blonde" jokes. On October 15, 1996, Petitioner learned that a co- worker, Pat O'Conner, a Field Biologist, Grade Level I, had his position upgraded to Field Biologist, Grade Level II. Pat O'Conner is a male and had less seniority in the Department than Petitioner. The position upgrade was not advertised and was not open to competition. Petitioner complained about this and was told to "sit tight" until an ongoing investigation of Mr. Wright was completed. Mr. Wright was removed from his position in March 1997. Petitioner prepared a complaint with the Jacksonville Equal Opportunity Commission, which was signed on September 20, 1997, and filed sometime shortly afterward. Petitioner's complaint with the Florida Commission on Human Relations was filed on November 14, 1997.
Recommendation Based upon the Findings of Fact and Conclusions of Law, and because of the reasons set forth in paragraphs 21 and 28, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon gender. DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy B. Kalmbacher 600 Domenico Circle, A-10 St. Augustine, Florida 32086 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-6515 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
